JOHN P. SENATORE v. BOROUGH OF WESTVILLE

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5521-07T35521-07T3

JOHN P. SENATORE,

Plaintiff-Appellant,

v.

BOROUGH OF WESTVILLE and

STATE OF NEW JERSEY,

DEPARTMENT OF THE TREASURY,

Defendant-Respondents.

_____________________________________

 

Argued March 23, 2009 - Decided

Before Judges Reisner and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1500-05.

Michael Confusione argued the cause for appellant (Hegge & Confusione, L.L.C., attorneys; Mr. Confusione, of counsel and on the brief).

Robert A. Baxter argued the cause for respondent Borough of Westville (Wardell, Craig, Annin & Baxter, L.L.P., attorneys; Mr. Baxter, of counsel; Ekta Patel, on the brief).

Danielle P. Bradus, Deputy Attorney General, argued the cause for respondent State of New Jersey, Department of the Treasury (Anne Milgram, Attorney General, attorney; Ms. Bradus, of counsel; Melissa H. Raksa, on the brief).

PER CURIAM

Plaintiff, John P. Senatore, is a former police officer with defendant, the Borough of Westville (Borough), who appeals from two trial court orders. The first order, dated April 12, 2006, granted summary judgment dismissing his complaint against Westville, while the second order, dated June 6, 2008, granted summary judgment dismissing his complaint against the State of New Jersey, Department of Treasury (State). We affirm.

Plaintiff was employed as a Borough police officer from 1970 to 1975. During that time, disciplinary charges were filed against him, which resulted in a six-month suspension from the force. In February 1976, he applied for an accidental disability retirement with the Division of Pensions (Division). The Board of Trustees, Police and Firemen's Retirement System of New Jersey (Board), considered his application but initially "tabled" any decision on the application because it required additional information. Specifically, the Board "requested of Mr. Senatore a history of his back problems, especially one suffered in another employ." It also requested:

We ask of the Borough a listing of the medical absences recorded upon the Police record and a clarification as to whether the witness, Doris Mae Holloway, Police Dispatcher, actually saw the fall of June 24, 1975 or heard the noise and observed the victim after the fall. We would appreciate your assistance in this most difficult determination.

In a letter dated June 22, 1976, the Division notified plaintiff that the Board had rejected his application because "[t]he Board could not recognize that an accident in the line of duty was the cause of a total and permanent disability." Plaintiff appealed the Board's determination and the matter proceeded to an administrative hearing, where a hearing officer upheld the Board's decision and recommended that plaintiff's application be denied. In a letter dated May 17, 1977, plaintiff was notified of the Board's final decision and of his right to appeal to the Appellate Division within forty-five days of the letter. Plaintiff did not exercise his appeal rights.

At the same time plaintiff sought an accidental disability retirement, he also applied for an ordinary disability retirement. The June 22 letter rejecting his accidental disability retirement application also advised plaintiff that no action would be taken on his ordinary disability retirement application until "it can be determined whether you have established the 5 year minimum credit for such benefit." Because of the six-month suspension, however, plaintiff did not satisfy the requisite five-year minimum credit period for an ordinary disability pension.

Four years later, through his attorney, plaintiff requested a supplemental rehearing on his accidental disability retirement application based upon medical records in the possession of the Borough that Senatore claimed were not provided to the Board at the time of the original hearing, "medical information which would suggest that only the injury sustained in June and subsequently in January of the following year was the cause of [plaintiff's] disability." In a letter to plaintiff's counsel dated April 28, 1982, the Board declined to re-open his accidental disability application. The Board advised:

The reason for the Board's determination is that Mr. Senatore had a full evident[ia]ry hearing on October 1, 1976 in which he had the opportunity to present any and all medical evidence to substantiate his disability application. Mr. Senatore, who was represented by counsel, did not present at this hearing any live medical testimony, although he did bring in substantial documentation of his medical condition. Further, Mr. Senatore was given the opportunity at that hearing to depose a Dr. Puff, but he did not avail himself of this opportunity.

You argue in your letter of November 6, [1981] that there is new medical evidence, a medical report from S. Thomas Camp, M.D., which would alter the result of the hearing and was not available to Mr. Senatore in March 1977. The Board disagrees with this assertion. It sees no reason why the introduction on [sic] one more medical record would alter the result in this case. Mr. Senatore was given the opportunity to present live medical evidence at the [1976] hearing. He did not avail himself of this opportunity. One more report is not a sufficient reason to reopen this matter.

The Board further holds that the failure of Mr. Senatore to appeal the May 17, 1977 final decision of this Board terminates this matter. For this reason, the Board will not exercise its discretion to reopen this matter.

If you disagree with this determination, further recourse would be to the Appel[l]ate Division of the Superior Court of the State of New Jersey. This appeal must be taken within 45 days of this decision.

Plaintiff next attempted to purchase military service credits to apply to his pension. In an April 25, 2005 letter from the Division to his attorney, plaintiff was advised that only active members of the Police and Firemen's Retirement System (PFRS) "were permitted to purchase additional pension membership credit." The letter noted that plaintiff submitted a request to withdraw his contributions on October 10, 1980, and received a check the following month for $3,557.34, representing his total member contributions. The letter further advised that "[h]e would have therefore needed to request to purchase his military service prior to the time he ceased to be an active contributing member of PFRS." Additionally, the letter advised plaintiff of his right to appeal to the Board and included the Board Secretary's name and the Board's address. Plaintiff, however, did not exercise his right to appeal directly to the Board. Instead, in September 2005, plaintiff commenced an action in Superior Court against the Borough and the State alleging fraud and constitutional violations. He sought declaratory relief permitting him to purchase military credits to be applied to his PFRS retirement pension, a declaration of eligibility for a regular retirement pension, back pension benefits, and attorneys' fees.

On April 12, 2006, the court granted summary judgment in favor of the Borough, dismissing plaintiff's complaint based upon plaintiff's non-compliance with the notice provisions of the New Jersey Tort Claims Act (Act), N.J.S.A. 59:1-1 to 12-3. The court additionally found that plaintiff's claims were barred by the statute of limitations pursuant to N.J.S.A. 2A:14-1. Two years later, in lieu of filing an answer, the State moved to dismiss plaintiff's complaint for failure to state a claim upon which relief may be granted, Rule 4:6-2(e). On June 6, 2008, the court granted the State's motion. The court concluded the complaint alleging fraud and violation of constitutional rights was drafted broadly and did not provide the requisite specificity as to the cause of action. The court also found that plaintiff failed to exhaust his administrative remedies. The present appeal followed.

Plaintiff raises the following points for our consideration:

[POINT I]

THE TRIAL COURT ERRED IN DISMISSING PLAINTIFF'S COMPLAINT ON PROCEDURAL GROUNDS WITHOUT AFFORDING PLAINTIFF AN OPPORTUNITY TO PURSUE THE MERITS OF HIS CLAIMS.

[POINT II]

PLAINTIFF'S CLAIMS AGAINST WESTVILLE SHOULD BE REMANDED BACK TO THE TRIAL COURT FOR DISCOVERY.

A. PLAINTIFF STATED VALID CLAIMS FOR DEPRIVATION OF HIS STATE-LAW RIGHTS AND FRAUD ARISING FROM THE BOROUGH CLERK'S IMPROPER COMMUNICATIONS WITH THE DECISION-MAKER IN PLAINTIFF'S BENEFITS CASE.

B. PLAINTIFF'S CLAIMS AGAINST WESTVILLE ARE NOT BARRED AS A MATTER OF LAW ON PROCEDURAL GROUNDS.

i. PLAINTIFF'S CLAIMS ARE NOT BARRED ON THEIR FACE BY THE STATUTE OF LIMITATIONS.

ii. THE TORT CLAIMS ACT DOES NOT BAR PLAINTIFF'S CLAIMS AS A MATTER OF LAW.

[POINT III]

PLAINTIFF'S CLAIM AGAINST THE DIVISION OF PENSIONS SHOULD BE REINSTATED AND REMANDED BACK TO THE TRIAL COURT ALONG WITH THE CLAIMS AGAINST WESTVILLE FOR FURTHER PROCEEDINGS; ALTERNATIVELY, THE COURT SHOULD REVIEW THE ADMINISTRATIVE DECISION PER [RULE] 2:2-3 AND REMAND THE MATTER BACK TO THE DIVISION FOR RECONSIDERATION AND REASSESSMENT OF PLAINTIFF'S BENEFITS APPLICATION.

I.

First addressing the grant of summary judgment to the Borough, our review of a trial court's grant of summary judgment is de novo, applying the same legal standard as the trial court under Rule 4:46-2(c). Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230 (App. Div.), certif. denied, 189 N.J. 104 (2006). A motion for summary judgment should be granted only when the moving party establishes the absence of any genuine issue of material fact in dispute. Brill v. Guardian Life Ins. co. of Am., 142 N.J. 520, 539-40 (1995). When the facts are undisputed, we then determine whether the court's application of the law was correctly applied. We accord no special deference to the legal conclusions reached by a trial judge. Atl. Mutual, supra, 387 N.J. Super. at 231 (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).

On this appeal, we accept plaintiff's version of Westville's conduct as true and give plaintiff the benefit of all reasonable inferences from the facts. Baliko v. Stecker, 275 N.J. Super. 182, 186 (App. Div. 1994), certif. denied, 162 N.J. 199 (1999). While we agree that plaintiff's claims of constitutional violations do not require compliance with the notice provision under the Act, Owens v. Feigin, 194 N.J. 607, 609 (2008), the trial court properly concluded that plaintiff's claims were time barred both as to his state constitutional claims and his common law fraud claims.

Plaintiff's complaint does not specifically set forth the Borough's actions that form the bases for his state constitutional claims. He generally alleges deprivation of life, liberty, property and due process, as well as discrimination in his exercise of military rights. Viewing the allegations most favorably to plaintiff, Brill, supra, 142 N.J. at 540, plaintiff was required to file his complaint within two years of the accrual of his cause of action, to the extent any of the claims sounded in tort. See Montells v. Haynes, 133 N.J. 282, 291-95 (1993) (holding that the two-year statute of limitations for personal injury claims set forth in N.J.S.A. 2A:14-2 applies to claims under the Law Against Discrimination (LAD) since those claims primarily address injuries to the person). As to plaintiff's claim that the Borough committed fraud, N.J.S.A. 2A:14-1 requires that fraud claims be asserted within six years of the accrual of a cause of action.

Here, the facts that may have given rise to plaintiff's state constitutional claims and fraud claims accrued, at the earliest, in 1977 when his application for accidental disability retirement was rejected and, at the latest, in 1981 after he sought to reopen his application based upon new medical evidence and a claim that the Borough, through its Clerk, Otto M. Bock (Bock), withheld documents from the Board. Plaintiff's complaint was not filed until 2005, nearly twenty-four years later. Consequently, there was no genuinely disputed issue of fact as to whether plaintiff's claims against Westville were untimely and the grant of summary judgment dismissing those claims was proper.

II.

Plaintiff's claims against the State were also properly dismissed. N.J.S.A. 43:16A-11.11, which permits active members of the PFRS to purchase military credits to be applied to a PFRS pension, became law on June 6, 1991, more than ten years after plaintiff withdrew his pension contribution from PFRS. Therefore, his claim that he is entitled to a pension because of his prior military service and had a right to purchase such credits is without merit.

III.

Finally, the trial court also properly ruled that plaintiff failed to exhaust his administrative remedies. N.J.S.A. 43:16A-13 is the enabling legislation that reposes in the Board the administrative responsibility for the processing and payment of pension benefits under PFRS. Pursuant to the regulations promulgated under the statute, the Board determines a member's eligibility to receive retirement benefits, and its final administrative decision on a member's eligibility is appealable directly to the Appellate Division. N.J.A.C. 17:4-1.7.

When the Division notified plaintiff on April 27, 2005, that it would not reopen his pension application, it also advised plaintiff of his "right to file a formal appeal with the Board of Trustees" and provided the name and address of the person to whom his formal appeal should be submitted. Plaintiff's contention that he failed to exhaust the administrative remedy available to him because he believed that process would prove "fruitless" does not warrant application of an "exception" doctrine to the exhaustion requirement based upon a claim that administrative remedies would be futile. See Garrow v. Elizabeth Gen. Hosp., 79 N.J. 549, 561 (1979) (noting that "[e]xceptions exist when only a question of law need be resolved; when the administrative remedies would be futile; when irreparable harm would result; when jurisdiction of the agency is doubtful; or when an overriding public interest calls for a prompt judicial decision").

Plaintiff's claim of "fruitless[ness]" is based upon the prior rejection of his claim. What is contemplated, however, when the question of whether exhaustion of an administrative remedy would prove futile, is whether the administrative remedy is "clearly effective and completely adequate to right the wrong complained of." Baldwin Const. Co. v. Essex County Bd. of Taxation, 24 N.J. Super. 252, 274 (Law Div. 1952), aff'd, 27 N.J. Super. 240 (App. Div. 1953). Compare Patrolman's Benevolent Ass'n v. Montclair, 128 N.J. Super. 59, 65 (Ch. Div. 1974) (stating that exercise of the trial court's jurisdiction to compel freeholders' compliance with the New Jersey Employer-Employee Relations Act was based upon the court's finding that the unfair labor practice at issue was "beyond the reach of any available administrative remedy"). Thus, the fact that plaintiff may not have prevailed administratively was not a basis to forego that process.

"Exhaustion of administrative remedies before resort to the courts is a firmly embedded judicial principle." Garrow, supra, 79 N.J. at 558-59. "This principle requires exhausting available procedures, that is, 'pursuing them to their appropriate conclusion and, correlatively . . . awaiting their final outcome before seeking judicial intervention.'" Id. at 559 (citation omitted). In doing so, three purposes are served: (1) the administrative body with the requisite expertise will hear the matter; (2) the necessary factual record for meaningful appellate review will be developed; and (3) judicial resources are potentially preserved through the avoidance of unnecessary judicial intervention. Bd. of Educ. v. Bernards Twp. Educ. Ass'n, 79 N.J. 311, 317 (1979). We are satisfied that plaintiff was fully apprised of his right to pursue further administrative review, and the trial court's dismissal of plaintiff's complaint for failure to do so was proper as a matter of law.

The remaining arguments advanced by plaintiff are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

(continued)

(continued)

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A-5521-07T3

May 6, 2009